the final such contract expiring on June 30, 1960.
On July 1, 1960, plaintiff received a regular temporary appointment as a Training Instructor with FSI and was thereafter reappointed annually in that capacity through 1965. Then, on January 2, 1966, he received a career appointment to a limited assignment as a Foreign Service Reserve Officer, in which capacity he remains today.
Meanwhile, on September 26, 1966, in a letter to the CSC's Bureau of Retirement, Insurance and Occupational Health (BRIOH), plaintiff raised the question of creditability of retirement benefits for the period October, 1950, to June, 1960, during which he was under contract, supra. BRIOH advised plaintiff on December 27, 1966, that during that period he did not meet the statutory definition of a Federal employee as set forth in 5 U.S.C. §§ 8331(1) and 2105(a). Specifically, BRIOH denied the requested benefits on the grounds that plaintiff was "self-employed and not under the supervision and direction of a Federal officer for the term of the contracts." (R. 60.)
In a decision issued October 14, 1970, CSC's Board of Appeals and Review (BAR) affirmed the decision of BRIOH. (R. 64-69.) BAR held that the annual contracts for the 1950-1960 period were for non-personal services and did not create an employment relationship creditable for retirement benefits. Thereafter, on two occasions, the CSC Commissioners rejected petitions to reopen or to reconsider the BAR ruling, the last such rejection occurring on March 23, 1973. The plaintiff then filed in the Court of Claims which dismissed the petition on jurisdictional grounds.
He then filed his complaint in this Court on March 13, 1974.
The defendants challenge this Court's jurisdiction on various grounds.
First, it is asserted that the doctrine of sovereign immunity bars this action under 28 U.S.C. § 1331(a).
See, e.g., United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949); Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963). However, it is clear that, in this circuit, § 10 of the Administrative Procedure Act, 5 U.S.C. § 702,
even though not pleaded provides "an independent source of jurisdiction that empowers district courts to review much agency action regardless of the amount in controversy."
Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, at 1109 (D.C.Cir. 1974), (citations omitted). See also Associated Electric Cooperative, Inc. v. Morton, 165 U.S. App. D.C. 344, 507 F.2d 1167 (1974). Accordingly, the defense of sovereign immunity has been waived.
Next defendants challenge this Court's jurisdiction to provide any relief under 28 U.S.C. § 1361 on the ground, correctly, that mandamus does not lie to compel a discretionary act, but only where there is a ministerial duty to be performed. Defendants' position is that creditability of retirement benefits is discretionary because plaintiff's contract service was not considered, by the defendants CSC Commissioners, to be Federal employment under 5 U.S.C. § 2105(a). Such a contention, of course, assumes the ultimate issue in this case, i.e., whether plaintiff was in fact an employee of the United States during the period in question. Further, the determination of whether a person performing services is an employee in a given case is not committed to agency discretion, but is, in fact, subject to judicial review. See Dismuke v. United States, 297 U.S. 167, 173, 56 S. Ct. 400, 80 L. Ed. 561 (1936). See also Adelstein v. Macy, 265 F. Supp. 171, 172 n.1 (E.D.N.Y.1967).
Finally, where the Court otherwise has an independent basis of jurisdiction, the Court may award declaratory relief under 28 U.S.C. §§ 2201, 2202, and it may issue any writ necessary in aid of its jurisdiction under 28 U.S.C. § 1651, the All Writs Act.
Having cleared the jurisdictional hurdles, we turn to the merits.
At the outset, we recognize that in Federal employee adverse action litigation the District Court exercises limited judicial review and only to determine whether the challenged agency action is arbitrary, capricious, or otherwise not supported by substantial evidence. 5 U.S.C. § 706(2). Moreover, that "determination is based upon the agency record submitted to it." Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 341, 477 F.2d 1223, 1226 (1973).
The administrative record in this case indicates that BRIOH denied plaintiff his requested retirement benefits in reliance, primarily, on the advice of the Supervisor, Retirement and Tax Accounting of the State Department That advice was to the effect that the annual contracts between plaintiff and the Department for the period in question did not create an employment relationship, but rather that the plaintiff "was considered to be self-employed and he was not under the supervision and direction of a Federal officer." (R. 176, 178.)
A scant two weeks after receipt of the Supervisor's report, BRIOH informed plaintiff that the contract language and the report operated to defeat his claim.
The pertinent provisions of the contracts are as follows: